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Akiachak Native Cmty. v. Salazar

United States District Court, District of Columbia

March 31, 2013

AKIACHAK NATIVE COMMUNITY, et al., Plaintiffs,
v.
KENNETH SALAZAR, Secretary of the Interior, et al., Defendants, and THE STATE OF ALASKA, Intervenor

Page 196

For AKIACHAK NATIVE COMMUNITY, Plaintiff: Hollis L. Handler, LEAD ATTORNEY, PRO HAC VICE, ALASKA LEGAL SERVICES CORPORATION, Juneaau, AK; Richard A. Guest, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Washington, DC; Heather Kendall Miller, NATIVE AMERICAN RIGHTS FUND, Anchorage, AK.

For CHALKYITSIK VILLAGE, CHILKOOT INDIAN ASSOCIATION, TULUKSAK NATIVE COMMUNITY (IRA), Plaintiffs: Richard A. Guest, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Washington, DC; Heather Kendall Miller, NATIVE AMERICAN RIGHTS FUND, Anchorage, AK.

For ALICE KAVAIRLOOK, from Case No. 06-1405, Plaintiff: Heather Kendall Miller, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Anchorage, AK; Richard A. Guest, LEAD ATTORNEY, NATIVE AMERICAN RIGHTS FUND, Washington, DC; Andrew R. Harrington, ALASKA LEGAL SERVICES CORPORATION, Fairbanks, AK.

For UNITED STATES DEPARTMENT OF INTERIOR, Defendant: Daniel G. Steele, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC.

For DIRK KEMPTHORNE, Secretary of the Interior, from Case No. 06-1405, Defendant: Daniel G. Steele, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Environment and Natural Resources, Washington, DC.

For STATE OF ALASKA, Intervenor Defendant: Elizabeth Jeanne Barry, J. Anne Nelson, LEAD ATTORNEYS, STATE OF ALASKA DEPARTMENT OF LAW, Anchorage, AK.

OPINION

Page 197

Rudolph Contreras, United States District Judge.

MEMORANDUM OPINION

Four tribes of Alaska Natives and one individual Native brought this suit to challenge the Secretary of the Interior's decision to leave in place a regulation that treats Alaska Natives differently from other native peoples. The challenged regulation governs the taking of land into trust under Section 5 of the Indian Reorganization Act, 25 U.S.C. § 465; it provides that, with one exception, the regulatory procedures " do not cover the acquisition of land in trust status in the State of Alaska." 25 C.F.R. § 151.1. The plaintiffs argue that this exclusion of Alaska Natives--and only Alaska Natives--from the land-into-trust application process is void under 25 U.S.C. § 476(g), which nullifies regulations that discriminate among Indian tribes. The State of Alaska has intervened to argue that the differential treatment is required bye the Alaska Native Claims Settlement Act ("ANCSA" or the " Claims Settlement Act" ), which (on the State's account) deprived the Secretary of the statutory authority to take most Alaska land into trust. The Secretary disagrees, but nonetheless seeks to justify the regulation by reference to ANCSA. For the reasons explained below, the court concludes that the Secretary retains his statutory authority to take land into trust on behalf of all Alaska Natives, and that his decision to maintain the exclusion of most Natives from the land-into-trust regulation violates 25 U.S.C. § 476(g), which provides that contrary regulations " shall have no force or effect." The court therefore grants summary judgment to the plaintiffs, and orders additional briefing on the question of the proper remedy.

I. BACKGROUND

The land claims of Alaska Natives remained unresolved for the first century of our history in Alaska. The Treaty of Cession, by which Russia conveyed Alaska to the United States, provided that " [t]he uncivilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country." Treaty of Cession, U.S.-Russia, art. 3, Mar. 30, 1867, 15 Stat. 542. When the Organic Act of 1884 established a civil government in Alaska, it also declared " [t]hat the Indians or other persons in said district [that is,

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the Territory of Alaska] shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them." Organic Act of 1884, § 8, 23 Stat. 24, 26. However, the establishment of " the terms under which such persons may acquire title to such lands" was " reserved for future legislation by Congress." Id. The Supreme Court has explained that both the Organic Act of 1884 and the Act of June 6, 1900, 31 Stat. 321, were " intended . . . to retain the status quo " regarding the land claims of Alaska Natives " until further congressional or judicial action was taken." Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 278, 75 S.Ct. 313, 99 L.Ed. 314, 130 Ct. Cl. 839, 15 Alaska 418 (1955).

Congress enacted a series of laws providing land for Alaska Natives without resolving their claims of aboriginal right. A reservation was established by Congress in 1891 for the Metlakatla Indians, who had recently moved to Alaska from British Columbia. See Metlakatla Indian Community v. Egan, 369 U.S. 45, 48, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962). In the years that followed, other reserves were established by executive order. See Cohen's Handbook of Federal Indian Law § 4.07[3][b][iii], at 337-38 (Nell Jessup Newton ed., 2012); David S. Case & David A. Voluck, Alaska Natives and American Laws 81-110 (3d ed. 2012) (both discussing the history of reservation policy in Alaska). While those reserves were being established, Congress enacted Alaska Native Allotment Act, Pub. L. No. 59-171, 34 Stat. 197 (1906), and the Alaska Native Townsite Act, Pub. L. No. 69-280, 44 Stat. 629 (1926). The Allotment Act allowed Alaska Natives to acquire title to as much as one hundred and sixty acres of land that they used and occupied, while the Townsite Act " provid[ed] for the patenting of lots within Native townsites ." United States v. Atlantic Richfield Co., 435 F.Supp. 1009, 1015 (D. Alaska 1977), aff'd 612 F.2d 1132 (9th Cir. 1980). " Both acts placed restrictions on the title conveyed so that lands could not be alienated or taxed until . . . certain federally prescribed conditions were met." Case & Voluck at 113; see also Atlantic Richfield, 435 F.Supp. at 1015 (" Native townsite residents received a restricted deed, inalienable except by permission of the townsite trustee." ).

In 1934, Congress enacted the Indian Reorganization Act, Pub. L. No. 73-383, 48 Stat. 984. Section 5 of the IRA provided that:

The Secretary of the Interior is hereby authorized, in his discretion, to acquire through purchase, relinquishment, gift, exchange, or assignment, any interest in lands . . . within or without existing reservations, including trust or otherwise restricted allotments . . . for the purpose of providing land for Indians.

48 Stat. 985 (codified at 25 U.S.C. § 465). At the time of its enactment, Section 5 was inapplicable " to any of the Territories, colonies, or insular possessions of the United States," 48 Stat. 986 (codified at 25 U.S.C. § 473), but it was extended to the Territory of Alaska two years later, Act of May 1, 1936, Pub. L. No. 74-538, § 1, 49 Stat. 1250 (codified at 25 U.S.C. § 473a). That enactment also authorized the Secretary to designate reservations on certain Alaska lands. Id. § 2, 49 Stat. 1250-51. Seven reservations were established under that authority, see Cohen's Handbook § 4.07[3][b][iii], at 338, and three properties containing canneries were also taken into trust on behalf of Alaska Natives, AR 246 (Memorandum from Thomas L. Sansonetti, Solicitor, Department of the Interior (" Sansonetti Memo." ) at 112 n.277 (Jan. 11, 1993)).

In 1971, Congress enacted the Alaska Native Claims Settlement Act, Pub. L. No. 92-203, § 2(b), 85 Stat. 688, " a comprehensive

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statute designed to settle all land claims by Alaska Natives," Alaska v. Native Village of Venetie, 522 U.S. 520, 523, 118 S.Ct. 948, 140 L.Ed.2d 30 (1998). Congress declared its intention that,

the settlement should be accomplished rapidly, with certainty, in conformity with the real economic and social needs of Natives, without litigation, with maximum participation by Natives in decisions affecting their rights and property, without establishing any permanent racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions enjoying special tax privileges or to the legislation establishing special relationships between the United States Government and the State of Alaska[.]

ANCSA, § 2(b), 85 Stat. 688 (codified at 43 U.S.C. § 1601(b)). To that end, the Claims Settlement Act " revoked 'the various reserves set aside . . . for Native use' by legislative or Executive action, except for the Annette Island Reserve inhabited by the Metlakatla Indians, and completely extinguished all aboriginal claims to Alaska land." Venetie, 522 U.S. at 524 (citing ANCSA, § 4 and quoting id., § 19(a) (codified at 43 U.S.C. § § 1603, 1618(a))). The terms of the extinguishment were as follows:

All aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy . . . are hereby extinguished. . . .
All claims against the United States, the State [of Alaska], and all other persons that are based on claims of aboriginal right, title, use, or occupancy of land or water areas in Alaska, or that are based on any statute or treaty of the United States relating to Native use and occupancy . . . are hereby extinguished.

ANCSA, § 4(b)--(c) (codified at 43 U.S.C. § 1603(b)--(c)). " In return, Congress authorized the transfer of $962.5 million in state and federal funds and approximately 44 million acres of Alaska land to state-chartered private business corporations that were to be formed pursuant to the statute; all of the shareholders of these corporations were required to be Alaska Natives." Venetie, 522 U.S. at 524 (citing ANCSA, § § 6, 8, 14 (codified at 43 U.S.C. § § 1605, 1607, 1613)). " The ANCSA corporations received title to the transferred land in fee simple, and no federal restrictions applied to subsequent land transfers by them." Id. The Alaska Native tribes did not receive either land or money in the settlement; rather, their members received stock in the Native-owned corporations that received settlement land and funds. In that way, ANCSA " attempted to preserve Indian tribes, but simultaneously attempted to sever them from the land; it attempted to leave them as sovereign entities for some purposes, but as sovereigns without territorial reach." Venetie, 522 U.S. at 526 (quoting Venetie, 101 F.3d 1286, 1303 (9th Cir. 1996) (Fernandez, J., concurring)).

ANCSA repealed the Allotment Act, although the Secretary retained the power to process pending applications. ANCSA, § 18(a) (codified at 43 U.S.C. § 1617(a)). Five years later, Congress and the President enacted the Federal Land Policy and Management Act of 1976 (" FLPMA" ), Pub. L. No. 94-579, 90 Stat. 2743, which repealed both the Townsite Act and Section 2 of the Act of May 1, 1936, 49 Stat. 1250-51, which authorized the Secretary to establish reservations in Alaska. See FLPMA ยง ...


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